S 2402 Introduced – Flammable Liquids by Rail

Last month Sen. Wyden (D,OR) introduced S 2402, the Crude Oil Advance Tracking (COAT) Act. The bill would establish notification requirements for flammable liquid rail shipments, insurance requirements for those shipments. It would also establish two grant programs for emergency response planning and training first responders for accidents involving those rail shipments.

Route Notification

Section 2 of the bill would amend 49 USC 20155, adding a new subsection (c). The bill would require railroads transporting railcars containing Class 3 flammable liquids to “notify all State and tribal emergency response commissions with jurisdiction along the path through which such liquids will be transported of such transportation not later than 24 hours after the shipment is tendered” {new §20155(c)}. The report would include:

• The number of gallons of each Class 3 flammable liquid;

• The city and State from which the tank cars departed and the date and time of such departure;

• The city and State to which the tank cars will arrive and the date and time of such anticipated arrival; and

• The location, date, and time of all crew changes between those two locations.

Insurance Reporting

Section 3 of the bill would amend 49 USC 20901, adding a new subsection (c). The bill would require railroads to perform annual reporting on their ability, “through insurance payments or other assets, to pay all costs of cleaning up a reasonable, worst-case spill, which shall be calculated by multiplying the reasonable anticipated per-barrel cleanup costs by the reasonable worst case spill volume” {new § 20901(c)(1)}.

Preparedness Training

Section 3 of the bill would amend 49 USC 5115(b)(1), inserting a new subparagraph (B). It would require DOT to “recommended course of study and emergency supplies to train public sector employees and contractors to respond to an accident or incident involving trains transporting at least 20 tank cars of flammable liquids or gases”.

Section 6 of the bill would amend 49 USC 5116, modifying the current requirements for State hazmat emergency response training grants. The bill would modify the current reference to ‘hazardous material’ in subsections (a)(1)(C) and (a)(2) to specifically include “flammable liquids or gasses”. It would then add a new subparagraph to §5116(a)(3)(C) requiring States and Indian Tribes accepting emergency response training grants to agree to make “at least 90 percent of the amount of the grant received to carry out the purpose described in subparagraph (B) [emergency response training] in fiscal years 2020, 2021, and 2022 to local emergency planning committees established under section 301(c) of the Emergency Planning and Community Right-To-Know Act of 1986 (42 U.S.C. 1101(c)) to develop emergency plans under such Act”. In subsequent years the amount would be 75%.

Emergency Response Planning Grants

Section 5 of the bill would also ament 49 USC 5116, adding a new §5116(a)(1)(D). This new subparagraph would require DOT to make grants to States and Indian Tribes to help them “develop, improve, and carry out emergency plans for communities through which railroads transport a train or trains transporting flammable liquids or gases”. It would also apply the LEPC provision described above to emergency response planning grants.

Track Relocation Grants

Section 7 of the bill would require DOT to establish a “grant program to provide financial assistance for local projects, activities, and personnel that mitigate the impacts of, and public health or environmental risks associated with, the transport of flammable liquids or gases by rail” {§7(b)}.

Authorization of Funds

Section 8 of the bill authorizes the appropriation of $15 million for the training and planning grants in 49 USC 5116(a), including the new grants described in this bill. It also authorizes $25 million for the track relocation grant program established by this bill.

Moving Forward

Wyden is not a member of the Senate Commerce, Science, and Transportation Committee to which this bill is assigned for consideration. This makes it unlikely that the bill will be taken up by that Committee. The spending authorizations included in the bill also limit the likely consideration of the bill. Finally, I would expect significant opposition from Committee Republicans to the notification requirements in the bill.

Commentary

WOW, there are just so many things wrong with the crafting of this bill that I suspect that Wyden’s staff had little to do with its development. In §2(b) of the bill, for instance, there is a requirement for DOT to publish a report using information provided by State emergency response commissions that the bill never requires the States to compile or submit. Later in the same section DOT is required to share information provided in the new 49 USC 20155(c) with State and local officials that the new language requires to railroad to supply to State and local officials not DOT. The same information sharing requirement is applied to PHMSA for a pipeline safety code section that does not include the referenced subsection {49 USC 60108(f)}. And, the track relocation grants section of the bill references 49 USC 20154 that was repealed in 2015. This is just sloppy legislative craft.

Okay, now to the substance issues.

I kind of like the idea behind the notification requirements in §2 of the bill, but LEPC’s are not really set up to be agencies dealing with real-time hazard notifications; they are planning organizations. The requirements in §2 also show that Wyden has never dealt with railroads on an operational basis as it completely ignores the fact that long distance freight rail traffic is seldom scheduled this thoroughly especially when traffic has to transit rail lines owned by multiple railroads. And the big item missing in this section is any requirement to report delays enroute where the railcars are just sitting on rail sidings waiting for the next stage of their journey. While standing railcars are a minimal derailment threat, they are an easier target for terrorist attack than moving trains.

There have been a number of attempts over the last ten years or so to set up requirements for railroads to provide emergency response personnel with timely information about hazmat rail shipments. Beyond the problems on the railroad side of the equation about advanced knowledge of where a railcar will be along the entire length of its journey, there is a bigger problem caused by the fractured nature of emergency response agencies in this country. There are just too many fire departments and too many of them do not have the full time staffing necessary to handle the notification process. And, lets face it, railroads are generally safe enough that any notifications are going to end up being ignored in any case.

The provisions in this bill for the training and planning grants are a good starting point for future discussions about this issue. Having said that, I do not see any specific need to highlight flammable liquids and gasses when there is already a generic requirement for hazardous materials. The idea of funneling emergency response planning grants through LEPCs has a certain amount justification (since there is no existing federal funding mechanisms for these agencies), but the requirements in this bill ignore the fact that not all areas have LEPCs, especially rural areas that do not have significant chemical manufacturing facilities. Even where LEPCs do exist, they may not be the most appropriate local agency to conduct emergency response planning for rail incidents.

Fortunately, this poorly crafted bill is unlikely to do more that promote Wyden’s re-election campaign.